Conclusion
9
This book provides a sociological approach to law and social change. It has mapped out important global changes which can have varying impacts on national legal systems and local laws. These changes are also significant for the perceptions, among various actors, of the availability or utility of law as a route to, or symbol of, reform. There is some evidence of convergence in substantive laws and legal institutions, as many countries legislate on similar topics sometimes following their participation in multilateral conventions or treaties. Countering the simple convergence thesis, much empirical research identifies the diverse ways in which legislation is implemented and enforced locally. As Carruthers and Halliday suggest: ‘national experiences influence global norm making and global norms constrain national lawmaking’ (2006: 1187).
The book also offers an expansive conception of law. Law is presented as a complex of practices and institutions, generally oriented towards social control, regulation or dispute resolution. Law is not viewed primarily as a contained body of knowledge accessible only to legal practitioners and judicial personnel. Determining what the law is in relation to a particular dispute is one minute facet of its operation in social life. Nor is the law constituted simply by the structures and processes of the formal legal system and the activities of legal personnel, including police officers, lawyers, judges and court administrators. For some theorists, the distinctiveness of law derives from its mode of enforcement or source of authority; others will consider it an interpretive scheme that categorizes and regulates social relationships; while for others it is its discrete language based on rights discourse and notions of property ownership. Law is an integral component of social organization and cannot be understood in a vacuum and isolated from other social institutions and social forces. It shapes and is shaped by market relations, the structure of social inequality, the level of industrialization, cultural values, processes of socialization, governmental structures and political ideology, as well as by other social phenomena.
The preceding chapters are less concerned with addressing the question of what law is or arriving at a simple or single conception of law than with inquiring into how sociologists define or conceptualize law and its interrelationships with other forms of social control, dispute resolution and regulation. The discussion addresses the interrelationships between law and social change by critically examining contemporary developments in the interdisciplinary field of socio-legal theory combined with analyses of empirical and comparative case studies. For many social movements and activists, law is a critical strategy for social reform, yet it is constrained by social institutions, cultural values, everyday practices and legal consciousness. Law is an important constitutive force moulding social relations and identities, which in turn constitute and shape law (Brigham, 1996: 129–54). Law provides resources for social change, for example legal language and the power of legal concepts that can be used to articulate identities or claims, but it also limits the capacity for social activism (Bower, 1994).
While the term ‘the law’ is often used by social researchers, legal practitioners and citizens alike, it usually means different things to the different people using it (Ewick and Silbey, 1998). In order to capture some of the diversity of law and legal practice in social life, this book first canvasses various conceptions of law and surveys legal theorists’ articulations of law, especially in the perspectives of legal formalism, legal realism and natural law. In contrast, a sociological approach to law is more concerned with substantive empirical issues in which law varies in its level of significance, than with abstract notions of the law. This is shown in the overview of Durkheim, Weber and Marx’s sociological theories of social structure, action and social change. The diversity of conceptions of law and interconnections with social life is clearly apparent in current social theories of law, which tend to emphasize the multiplicity of legal norms, the complexity and instability of law, the importance of subjectivity and the transformative capacity of law. Postmodern approaches, often following Foucault, and pluralistic discussions of law do not focus on legal institutions but on regulation and discipline, the deployment of legal imagery and rights discourses and the infusion and pervasiveness of law in everyday life. In this context, lawyers are important, but not the sole, actors in interpreting, transforming, or even manipulating, the law and thus affecting access to legal remedies.
Two important areas of law and legal action are dispute resolution and social control and both are discussed in reference to global, national and local changes and challenges. Of course, not all resolutions of disputes or social control entail law, and a goal of this book is to assess the interrelationships between law and other mechanisms for resolving conflict and attempting to achieve social control or regulation. To investigate the ways in which social contexts, cultural values, political institutions and history can structure such interrelationships, numerous empirical and comparative case studies from a variety of societies are incorporated. The final, substantive chapters of the book examine the ways in which social movements, especially the women’s movement and rights activists, focus on law as an important strategy for social change. These chapters also demonstrate how legal institutions and discourse will shape the nature of social activism, as well as providing resources to marginalized groups (as well as other interests) for the assertion (or denial) of citizenship and equality.
Following Durkheim, the book generally distinguishes between law as dispute resolution and law as social control and devotes a chapter to each, largely because legal institutions in common-law countries reflect such a distinction. However, the difference is more analytical than empirical. Many criminal-law practices, for example, entail informal negotiations and mediation and eschew litigation and adversarial courtroom tactics. Changes in the legal system can indicate wider shifts and orientations on the part of the general public or, at least, political elites. Criminal laws and the criminal justice system, perhaps more than other areas, are particularly subject to ‘moral’ panics (Cohen, 1980) and electoral politics, often resulting in more severe penalties, the criminalization of new types of behaviour and harsher policies toward certain categories of offender.
One significant shift in the legal systems of many western, democratic nations is the expansion of alternative dispute resolution (ADR) as an organized and desirable reform. Its rationale has followed widespread criticism of legal institutions’ failure to provide justice to the many litigants and victims of crime, the expense, the time involved in any court action and the whole structure of adversarialism, which discounts opportunities for compromise, mediation, negotiation and more informal approaches. Many would assert that the new tribunals facilitate the local resolution of disputes, are faster, more informal, more efficient and less costly than court action. Rather than being an alternative to the formal legal system, the new fora for dispute resolution and some criminal justice issues are usually connected with more formal procedures and do involve legal personnel. The extent to which the ADR movement offers an alternative to the formal legal system, the relationship between different forms of dispute processing and the degree to which reformers’ aspirations have been realized are topics of ongoing empirical research.
The book’s overarching theme is the interrelationship between law and social change. The oft-called classical social theorists – Durkheim, Weber and Marx – were centrally concerned with the question of social change and to varying degrees did theorize the significance of law in epochal social transformations, including the emergence of market economies, the rise of rationality as a key principle of social organization, and the growth and increasing complexity of social life. Marx and Weber were particularly interested in the interconnections between economic conditions and the form of law, as well as issues relating to access to justice and the role of law in the reproduction of social stratification. For Durkheim, identifying the dominant form of law in a society is an important indicator of the type of society, thus mapping social change requires mapping legal change. Of these three theorists, Weber’s theory of law is the most coherent and detailed and he explicitly links the rise of formal rational law with the pervasiveness of rationality (goal-oriented action) in western economic and social life. His typology of law implies an evolutionary legal development, with formally rational law being the most advanced type; and, while cognizant of the significance of economic forces, he does not attribute causality to modern capitalism and modern legal systems. He assigns particular significance to the self-interested legal profession and its links with the capitalist class system to explain why the English legal system was impervious to the development of fully rational law. For Weber, the distinctive character of law derives from its mode of enforcement by legally empowered actors, thus suggesting that the operation of law depends on particular, established, legitimate institutional arrangements.
For many contemporary social and political movements, legal institutions and doctrine are important avenues for social reform. At an institutional level, the focus is often on securing progressive change via litigation and judicial decisions. For example, civil rights groups, women’s movements, and indigenous activists have sought social reform and greater legal rights and protections, redress for past wrongs through litigation and the establishment of favourable interpretations of the constitution or bills of rights, where these exist. Legislation has also been important in such areas as sex and race discrimination, industrial relations and the establishment of welfare programmes. Indeed, during the twentieth century most western democratic nations established social policy programmes via legislation.
Many writers have described some of the consequences of the statutory establishment and administrative implementation of welfare states as the legalization or juridification of everyday life and social relations. The state provision of benefits and pensions in the areas of income maintenance, health and education ostensibly aims to enhance recipients’ economic independence and reduce a reliance on charities and informal or family sources of assistance, in order to achieve a minimum economic status and standard of living as a social right. These entitlements aim to enhance citizens’ autonomy; however, they also entail high levels of governmental regulation and surveillance. Enforcement of eligibility criteria is not carried out by legal personnel, but by state-employed (or at least funded) managers, administrators and welfare personnel. The welfare state presents a paradox: it enhances autonomy by buffering the effects of an unregulated market, but the formation of legislation and bureaucracies to administer legal entitlements (usually in the form of monetary compensation) result in a greater regulation of everyday life, that is, less autonomy (Habermas, 1987).